Motion Schweiger (06.3170): Combating cybercrime to protect children on electronic networks
Written off on 17.06.2015 in connection with the discussion of business 13.025
Submitted text
In order to protect children and to enable more effective action against crimes committed on electronic networks (the Internet), the Federal Council is called upon to take the measures necessary to better combat child-related crime on the Internet as soon as possible. In particular, the Federal Council is called upon to:
1. to draft a bill to amend Article 197(3bis) SCC to criminalize the intentional consumption of displays of hardcore pornography;
2. to draw up a bill to amend Article 15 paragraph 3 BÜPF and increase the obligation to retain log files from six to twelve months and to impose an appropriate penalty for failure to comply with this provision;
3. to draft a bill to amend Articles 4 BVE and 3 BÜPF with the aim of establishing a list of offences common to the two laws and to include Article 197 paragraph 3bis SCC in it;
4. develop an action plan for securing the content of Internet sites and hold Internet providers and hosters accountable. The providers should be obliged to make available to Internet users, free of charge, the programs necessary for filtering Internet content, as well as all the information necessary for setting and using them. For their part, Internet hosters should be required to regularly scan their servers to ensure the legality of the data stored there.
Justification
The measures requested above are necessary because they legislate the fight against cybercrime in general and offenses against the integrity and dignity of children in particular at three levels.
1 Although Article 197 (3bis) SCC only came into force on April 1, 2001, questions are already being asked about the interpretation, the scope of application and the practical handling of the norm. For example, the concept of possession ultimately depends on the consumer’s individual IT skills, because only those consumers of child pornography who do not know how to empty the cache memory of their Internet browser are liable to prosecution. This results in a different treatment of child pornography consumers with and those without the corresponding expertise. This legal situation is unsatisfactory. After all, the consumer of pedo-pornography who visits Internet sites with corresponding content but has no further IT knowledge is behaving just as criminally towards the child as the person who knows how to gain access to the cache memory of his browser. The proposed amendment has the initial advantage of sending a clear message that the consumption of child pornography will not be tolerated in any form. Moreover, the legally difficult question of a definition of “possession” of pedo-pornographic files would be solved. On the other hand, people who surf on sites with content of soft pornography and would be confronted with child pornographic images, for example, through a pop-up window, would not have to worry about such a changed legal situation, since only their intentional consumption would be punishable. Finally, the risk of unjustified measures on the part of law enforcement authorities, such as house searches, would not be increased at all.
2 Practical experience has shown that the obligation to retain log files on the part of Internet service providers is too short and that law enforcement authorities often simply do not have enough time for their investigations. Accordingly, the proposed amendment to the law aims to increase this period to twelve months, thus ensuring that the authorities have access to data that is essential for investigations to be carried out on the Internet. Furthermore, it is imperative that the violation of this obligation be accompanied by an appropriate penalty.
3 The BVE as well as the BÜPF are both part of a series of measures taken to fight organized crime. However, the two laws have different areas of application and therefore do not always apply together. It is therefore necessary to draw up a list of offences common to them and to include in it Article 197(3bis) SCC, which entered into force following the Federal Council’s dispatch on the BÜPF and the BVE (BBI 2000 2943). The aim of this measure is to coordinate the practical handling of the BVE and the BÜPF, two laws that serve to investigate particularly serious criminal offences.
4 All too often, parents are indifferent to the dangers that the Internet poses for their children. All too often, parents are also unaware of the existence of filtering programs that can be used to restrict access to sites that endanger the healthy development of children. It is therefore necessary to oblige Internet providers to make such programs and all related information available to their customers free of charge. For their part, the Internet hosts should be obliged to regularly check the contents located on their servers in order to prevent the publication of pages that violate the dignity of children. This measure aims to provide better protection to children using the Internet.
Statement of the Federal Council
Item 1
The Federal Council proposes that paragraph 1 of the motion be accepted.
Item 2, first part (extension of the retention period)
The question of whether the retention period for marginal data should be extended to one year in accordance with Article 15 (3) BÜPF is also being examined in a broader context – i.e. not just in relation to child pornography – as part of the treatment of the postulate SPK-SR 05.3006 of 21 February 2005, “More efficient combating of terrorism and organized crime”. The corresponding report has not yet been adopted by the Federal Council. The Federal Council does not want to anticipate the content of this discussion at this point in time. It has already stated in the Dispatch on the Unification of Criminal Procedure Law that the question of the retention period can only be definitively decided once the results of the aforementioned report are available (cf. BBl 2006 1251). For these reasons, the Federal Council requests that the extension of the retention period in accordance with point 2 of the motion be rejected.
Point 2, second part (penal provision against disregarding the obligation to keep records).
The Federal Council proposes to accept the creation of a special penal provision for sanctioning violations of the obligation to preserve records in accordance with item 2 of the motion.
Item 3
The catalogs of criminal offenses for the prosecution of which postal or telecommunications traffic may be monitored or an undercover investigation ordered are not congruent. This means that undercover investigators cannot be “accompanied” by telecommunications surveillance in all of their operations. In the draft Swiss Code of Criminal Procedure, the catalogs of offenses for telecommunications surveillance and the use of undercover investigators are therefore harmonized (cf. Arts. 268 and 285 E‑StPO and BBl 2006 1256). However, it is not appropriate to bring about complete conformity between the two catalogs of offences: A covert investigation is not a suitable measure for every criminal offense that can be investigated by means of telecommunications surveillance. In addition, the establishment of a uniform catalog of offenses would not do justice to the legislature’s intention to permit covert investigations only to a limited extent because of the special problems they pose for the rule of law. This is also expressed in the fact that telecommunications interception is only permitted if the “seriousness of the offence” justifies it (Art. 3 para. 1 let. b BÜPF), while covert investigation requires suspicion of “particularly serious offences” (Art. 4 para. 1 let. a BVE).
An argument against the inclusion of Article 197 paragraph 3bis SCC in the catalogs of offenses of the BÜPF and BVE is that the provision only threatens the offender with imprisonment of up to one year or a fine, and the offenses covered are therefore not comparable in terms of their severity with the offenses listed in these catalogs.
For these reasons, the Federal Council proposes that paragraph 3 of the motion be rejected.
Item 4
The proposed obligation for Internet providers to provide porn filter software to customers would hardly improve the protection of children. It could prove counterproductive in practice, because it is to be feared that it will give customers a false sense of security and that access providers will resort to cheap products whose protective function is very limited. It is much more important that users are informed about the existing risks and dangers by constantly improving education.
The further proposal to require hosting providers to periodically scan the content stored with them is hardly feasible from a technical point of view. Larger hosting providers have enormous amounts of data (thousands of gigabytes) that are subject to constant changes by content providers (authors). Apart from the lack of technical possibilities to search such large data sets for illegal content in a reasonable time, another problem would be the scope of such an obligation. Depending on the demand for completeness and thoroughness of such searches, scans will produce a larger or smaller amount of error messages, which would have to be checked manually in a time-intensive manner and require corresponding resources. Such an effort could hardly be justified against the background of the Internet as a real-time medium. In its report published in June 2003, the Expert Commission on Network Crime clearly stated that preventive control by providers is not a sensible measure (p. 39).
For these reasons, the Federal Council proposes that paragraph 4 of the motion be rejected.